2018(08)LCX0017

HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Ladu Lal Hiran & Ors.

Versus

State of Rajasthan

S.B. Civil Writ No. 5354/2018 decided on 28/08/2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR

S.B. Civil Writ No. 5354/2018

1. Ladu Lal Hiran, S/o Sh. Chandmal Hiran, Aged About 63 Years, Arham, Mahaveer Colony, District Bhilwara, Rajasthan.
2. Sh. Om Prakash, S/o Sh. Bhiyan Ram, Aged About 40 Years, Resident of 508, 19KBW, Ranjeetpura, Bikaner, Rajasthan.
3. Sh. Bhiyanram, S/o Sh. Motaram, Aged About 50 Years, Resident of 75 LNP, Shree Ganganagar, Rajasthan.
4. Sh. Vinod Kumar S/o Sh. Nehru Lal, Aged About 21 Years, Resident of 27 DOBB, Raowala, Bikaner, Rajasthan.
5. Smt. Sharda, W/o Sh. SheshKaran, Aged About 30 Years, Resident of 99, Modayat, Bikaner, Rajasthan.
6. Sh. Nandram Kasaniya, S/o Sh. Dhokalram Kasaniya, Aged About 42 Years, Resident of Chak 6, BMRPO, Barsalpur, Bikaner, Rajasthan.
7. Smt. Dami, W/o Sh. Hariram, Aged About 65 Years, Resident of 3, KWSM, Sansardesar, Tehsil Chhatargarh, Bikaner, Rajasthan.
8. Sh. Devkishan, S/o Sh. Chhoturam, Aged About 32 Years, Resident of Kumharon Ki Dhani, Ugraas, Khara, Jodhpur, Rajasthan.
9. Sh. Harikishan, S/o Sh. Likhmaram, Aged About 48 Years, Resident of Pabusar West Bikaner, Rajasthan.
10. Sh. Subhash Chandra S/o Sh. Dilip Kumar, Aged About 36 Years, Resident of Raowala, Bikaner, Rajasthan.
11. Sh. Balram, S/o Sh. Nehru Lal, Aged About 25 Years, Resident of Raowala, Bikaner, Rajasthan.
12. Sh. Moolaram S/o Sh. Hari Ram, Aged About 35 Years, Resident of Khetas, Nagore, Bikaner, Rajasthan.
13. Smt. Bhagwani W/o Sh. Banwari Lal, Aged About 57 Years, Resident of Opposite Samratpura, Jyotinagar, Peeprali Road, Sikar, Sikar Rajasthan.
14. Sh. Ramniwas, S/o Sh. Hariram, Aged About 40 Years, Resident of Plot No. 24, Krishna Vihar, Ward No.1, Bikaner, Rajasthan
15. Sh. Shaitanram S/o Sh. Takharam, Aged About 45 Years, Resident of Nayak Basti, Majhwas, Nagore, Rajasthan.
16. Sh. Shyampot Ram S/o Sh. Jagdish, Aged About 30 Years, (2 of 3) [CW-5354/2018] Resident of VPO, Gomawali, Warn No. 9, 8 GM, Ganganagar, Rajasthan.
17. Sh. Shivratan S/o Hajari Ram, Aged About 29 Years, Resident of Tanwarwala, Bikaner, Rajasthan.
18. Sh. Akash Legha, S/o Sh. Begaram Legha, Aged About 27 Years, Resident of Behind Doodi Petrol Pump, Bikaner, Rajasthan.
19. Sh. Banwari Badu S/o Prithviraj Bhadu, Aged About 35 Years, Resident of Jaat Colony, Bikaner, Rajasthan.
20. Sh. Kishan Lal S/o Sh. Gullaram, Aged About 38 Years, Resident of 3-PRM Peeranwali, Dantaur, Bikaner, Rajasthan.
21. Sh. Rajendra Bhadu S/o Sh. Kashiram, Aged About 40 Years, Resident of Ward No. 3, 1 KYED, Ganganagar, Rajasthan.
22. Sh. Vinod Kumar Karnani, S/o Sh. Kanhaiya Lal Karnani, Aged About 50 Years, Resident C-12, Karni Nagar, Lalgard, Near Bikaner Public School, Bikaner, Rajasthan.
23. Sh. Mohit Kumar Karnani S/o Vinod Kumar Karnai, Aged About 45 Years, Resident of C-112, Karninagar, Lalgarh Palace, Bikaner, Rajasthan.

----Petitioners

Versus

1. State of Rajasthan, Through Secretary, Department of Mines and Geology, Shastri Circle, Udaipur, Rajasthan.
2. Secretary, Finance Department, Government of Rajasthan, 1st Floor, Main Building, Government Secretariat, Jaipur- 302005, Rajasthan.
3. Director, Mines and Geology Department, Udaipur, Rajasthan.
4. Mining Engineer, Office of Mining Department, Bikaner.
5. Joint Secretary (Revenue), Ministry of Finance, Department of Revenue, Roon No.46,north Block, New Delhi- 110001

----Respondents

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Praveen Kumar

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State Of Rajasthan Through Secretary, Mines And Geology Department,

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Gordhan Das

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State Of Rajasthan And Ors.

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Gordhan Das

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Krishna Lime

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Jodhpur Pathar Udhyog

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State Of Rajasthan

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The State Of Rajasthan

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Om Prakash

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Hardev Ram Choudhary

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The State Of Rajasthan

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State Of Rajasthan

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Ram Kumar Vyas

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Kailash Ram

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Kishna Automobile

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Smt. Bhatudi

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M/s Moti Lime Private Limited

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The State Of Rajsthan Through Secretary

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S.B. Civil Writ No. 8943/2018

M/s. Moti Lime Pvt. Ltd.

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Nand Kishore

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----Petitioner

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Nand Kishore

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State Of Rajasthan

----Respondents

For Petitioner(s) : Mr. Ravi Bhansali, Senior Counsel assisted by Mr. Dhanesh Sarswat and
                           Mr. Vipul Dharnia
                           Mr. Vikas Balia
                           Mr. Himanshu Choudhary
                           Mr. Arvind Shrimali
                           Mr. Vijendra Puri
                           Mr. Khet Singh
                           Mr. Mahaveer Bhanwariya
                           Mr. Shreekant Verma
                           Mr. Rajesh Punia
                           Mr. A. Shrimali
                           Mr. Chain Singh
                           Mr. Amit Vyas
                           Mr. C.S. Bhati
                           Mr. Trilok Joshi
                           Mr. Digvijay Singh
                           Mr. Vijendra Puri

For Respondent(s) : Mr. Anil Bhansali with Mr. Bhagirath Patel
                               Mr. R.R. Ankiya for Mr. Vipul Singhvi
                               Mr. Sanjeet Purohit, ASG
                               Mr. Rishabh Tayal for Mr. K.L. Thakur, AAG

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

28/08/2018

1. These writ petitions under Article 226 of the Constitution of India have been preferred claiming, in sum and substance, the following reliefs:

“1. The letter No. P12(52) finance/tax/2017-III dated 8/11/2017 (annex.4) issued by Finance (Tax) Department, Rajasthan government may kindly be quashed and set aside.

2. A clarification may be issued to avoid, double burden on the miner/lease holder/end user and suitable amendment in law may be directed to the respondents.

3. The respondent authorities may be directed to place before the court the correct position of GST collection on royalty. Further, consequential directions to follow the correct method of GST collection on royalty may also be issued to the respondent authorities.

4. Any other order, which this Hon’ble Court deems fit and proper in the facts and circumstances of the case, may kindly be passed in favour of the petitioner.

5. Cost of the writ petition may kindly be allowed in favour of the petitioner.”

2. Precisely, the facts of this case are that the petitioners are engaged in the business activity of mining and are registered lease holders and have lawful mining lease in their favour. The respondent-State is empowered to award the Excess Royalty Collection Contract (ERCC) to the Royalty Contractors. The respondent No.2 Finance Department, Government of Rajasthan was empowered to authorize Royalty Contractors to collect GST on the amount of royalty collected for and on behalf of the Government.

3. The Royalty Contractors (termed as ERCC Contractors) got appointed by the Government exclusively for collecting the royalty on behalf of the Government from the mining lessee of natural resources without supply of such natural resources.

4. As per the relevant Rule 2 (xxiv) of the Rajasthan Minor Mineral Concession Rules, 2017, “Excess Royalty Collection Contract” being defined means that a contract to collect royalty in excess of annual dead rent and any other charges as may be prescribed in the contract, on behalf of the Government for specified mineral dispatched by the mining lease from the area specified in the contract (ERCC), the lessee was to pay fixed amount as installments of the Contract awarded to him by the Government upfront or in installments, and DMFT on actual collection on the basis of his rights to collect the royalty on specified natural resources from a specified territory. The royalty to be collected by a Royalty Contractor on the mining lease from the natural resources ought to be pre-determined and as fixed by the Government.

5. The letter of the Finance Department, Government of Rajasthan to Royalty Contractors became the bone of contention in these writ petitions, as the same entitled the contractor to collect GST @ 18% as forward charges.

6. Learned counsels for the petitioners submit that the letter issued by the Finance Department, Government of Rajasthan to authorize the contractor to collect the GST on the amount of royalty collected on behalf of the Government was against the provisions of Section 9 (3) of CGST Act, 2017 readwith notification No.13/2017 Central Tax (Rate) dated 28.06.2017.

7. Learned counsels for the petitioners further pointed out that Section 2 (105) of CGST Act, 2017 defines the term “Supplier”, in relation to any goods or services or both, to mean that the person supplying the said goods or services or both, shall include an agent acting on behalf of such supplier in relation to the goods or services or both.

8. However, at this juncture, learned counsel for the respondents have taken a stand by filing their respective pleadings that the Royalty Contractor (ERCC Contractor) are being appointed by the Government exclusively for collecting royalty on behalf of the Government from the mining lease holders of natural resources without supply of such natural resources.

9. Learned counsel for the respondents have further clarified that the royalty paid for mining activities as chargeable under the notification dated 28.06.2017 provides that the lease holders are required to pay the GST under the reverse charge mechanism.

10. It is contended by learned counsel for the respondents that lessee/lease holders will continue to submit and follow the existing procedure for filing of GST Returns, and payment of GST under the reverse charge mechanism is according to the provisions of law. It is further contended that the liabilities of lessee/lease holders will not be affected by the amended notification dated 26.07.2018.

11. Once, the reverse charge mechanism itself has not been contested by the respondents and it is an accepted proposition and the same is further supported by the pleadings filed by the respective respondent parties, we do not find any reason to make any further adjudication in the matter.

12. In light of the aforesaid submission and upon such stand of the respondents, the present writ petitions are allowed and the letter dated 08.11.2017 issued by the Finance (Tax) Department, Government of Rajasthan is hereby quashed and set aside. However, if any letter has been issued in pursuance of the letter dated 08.11.2017, the same shall also stand quashed.

(DR. PUSHPENDRA SINGH BHATI),J.